Trustee wins initial ruling board can’t hire attorney
Is that an opinion or the law?
I’m not an attorney, (although I did take the LSAT and have watched every episode of “Boston Legal”) but the recent announcement that the White River Township board may not hire an attorney to represent it in the on-going reorganization effort appears to fly in the face of a very clearly written Indiana code. The government modernization act of 2006 grants incredibly broad powers to governmental bodies in order to give them the ability to act.
Here is just a sample of some of the provisions that appear to be on point:
IC 36-1.5-1-4
Exercise of power to reorganize without complying with other laws
Sec. 4. A political subdivision may exercise the powers granted under this article to reorganize or enter into cooperative agreements without complying with the provisions of any other law, statute, or rule.
IC 36-1.5-1-5
Liberal construction
Sec. 5. This article shall be liberally construed to effect (sic) the purposes of this article.
IC 36-1-3-3-b
Rule of law; resolution of doubt as to existence of power of a unit
(b) Any doubt as to the existence of a power of a unit shall be resolved in favor of its existence. This rule applies even though a statute granting the power has been repealed.
IC 36-1.5-1-6
Provisions of this article inconsistent with other laws
Sec. 6. Except as otherwise specifically provided by law, to the extent the provisions of this article are inconsistent with the provisions of any other general, special, or local law, the provisions of this article are controlling, and compliance with this article shall be treated as compliance with the conflicting law.
Taken to its illogical conclusion the board could apparently create the White River Township Lottery, approve houses of ill repute, and permit Amsterdam style coffee houses in order to raise funding via taxes for the reorganization. I am not recommending any of these actions but hiring an attorney certainly sounds like a permissible action.
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3 Responses to “Trustee wins initial ruling board can’t hire attorney”
This is an illustration that the Trustee and his Board are at odds. The Trustee evidently can hire an attorney, but that attorney says the Board cannot. In looking at the citations of the law I agree that there is no solid reasoning behind this opinion and it is apparent the atty. is only supporting his client’s (the Trustee, Jay Marks) position. (Maybe the Board should not authorize paying the atty. fees!)
In the matter of reorganization, I believe (legally) it is the Board, not the Trustee, that is “in charge” of the process. The Trustee has opposed this course of action, but the Board is proceeding—as it should. In this matter the Board should ignore the Trustee AND whatever legal advice his atty. has provided and get their own atty. to guide them if they feel it necessary. And cut off payment for the Trustees atty. on matters regarding this particular piece of business which is solely the province of the Board.
Comment made on January 9th, 2009 at 8:22 amWhy is that most politicians, such as our Trustee, get a little power and then want more. It doesn’t matter if you are in Washington or a neighborhood association, someone is going to make a power grab. I applaud the board for acting in a responsible manner that most likely when it’s over will put them out of a job. Politicians working to get themselves out of office? That’s something refreshing.
Comment made on January 9th, 2009 at 8:07 pmThe State Board of Accounts (SBA) is not the authority for this question, the Indiana Attorney General (AG) issues such opinions in the absence of a court ruling. No AG ruling exists as far as I can tell. The Local Government and Finance agency also does not have the authority to issue legal opinions.
Also, the argument made by the Trustee’s attorney is based on a court-defined rule, and that rule is rarely applied to issues such as this. Mr. Messick would be well-served to have one of our state legislators request an AG opinion.
My 2¢.
Comment made on January 12th, 2009 at 9:29 amLeave a Comment